CONDUCT OF EMPLOYEE IN REMAINING ABSENT AND IN NOT JOINING DUTY DESPITE NOTICE WHICH HAD BEEN REFUSED BY HIM IS JUSTIFIED FOR TERMINATION OF HIS SERVICE.

[Mr. M. GOVINDARAJAN]

                        In ‘Surat Municipal Corporation V. Aminesh Chandravadan Bodiwala’ – 2012-I-LLJ-57 (Guj) the respondent was appointed by the appellant as per resolution No. 46, dated 11.05.1992 as a trainee and was serving as Primary Health Worker from 23.03.1994.  The training would be one year and within one year if the work of the respondent was not found satisfactory, then the same may be extended for further six months and thereafter during the extended period also if the work of the respondent was not found satisfactory the appellant corporation can terminate the services of the respondent without issue of notice.  During the training period the respondent was paid a fixed amount of Rs.1000/- per month towards work charges.  After the completion of the satisfactory training period, the services of the respondent shall be counted from the day on which he was appointed and this training period shall not be counted for the purpose of service period or for any other purpose.  The service of the respondent was terminated on 08.11.1995.

                        The respondent raised an industrial dispute before the Presiding Officer, Labour Court, Surat seeking to reinstate him to his original post with full back wages.  The contention of the respondent before the Labour Court is that since he was arrested in one of the criminal offence and as he was in judicial custody it was not possible for him to attend duty and so he remained absent from duty.  The appellant contended before the Labour Court that since the respondent was a trainee no notice was required to be issued to the respondent before termination of his service.   However the appellant issued a notice to the respondent which was refused by the respondent.  The Labour Court observed that before dismissing the services of the respondent from service no opportunity was given nor the domestic enquiry was conducted and was not paid with one month’s notice pay in accordance with the Standing Orders and hence there is violation of Section 25-F of the Industrial Disputes Act, 1947.  The Labour Court held that the termination of the service was illegal and directed the appellant Corporation to reinstate the respondent without back wages. 

                        The appellant filed appeal before the High Court.   The Single Judge has placed reliance on the list of events and accordingly observed that the respondent was terminated from service because he was involved in some criminal case and it is not in dispute before him that the respondent was acquitted of the said criminal case.  It was further observed that in case of a trainee when it is found that his training was not going on satisfactory, then such trainee is required to be informed of his short comings and the defects so that he can improve and he can have a self-introspection.   In the absence of such a communication to the respondent he was unable to hold that the period of training was extended because the first part of the training was not satisfactorily completed.  The Single Judge gave direction to the appellant that the respondent should be reinstated in service without any back wages and without any continuity of service.  The said order has been challenged before the Court.

                        The appellant contended the following before the Court:

• The respondent is not a permanent employee of the Corporation and in case of trainee, no lengthy procedure is required to be followed more particularly when there was clear lapse on the part of the respondent that too during the fixed training period;
• The Labour Court as well as the Single Judge appears to have not considered the resolution which is part and parcel of the appointment;
• To inform regarding shortcomings and defects, presence of the respondent was required and in the present case the respondent had not completed the training period of one year;
• Before terminating the services of the respondent the appellant had issued a show cause notice to the respondent which was returned undelivered with postal endorsement ‘refused’ and therefore, it cannot be said that the appellant had not given any opportunity to the respondent;
• Section 25-F of the Industrial Disputes Act is not applicable to the trainee employee as he is not a workman and so industrial dispute would also not lie before the Labour Court.

The respondent contended the following before the Court:

• Before terminating the services of the respondent no opportunity of hearing was given to the respondent nor was there any departmental enquiry held against the respondent for which the alleged misconduct against the respondent for remaining absent without leave;
• The respondent was not paid one month’s notice pay in accordance with the Standing Orders and, therefore, there is violation of Section 25-F of the Industrial Disputes Act, 1947;
• The respondent was involved in a criminal case and due to the circumstances beyond his control, he had remained absent from duty and hence the same cannot be treated as unsatisfactory work or misconduct.

The High Court found in the record that the police had arrested the respondent and sent him to judicial custody.   The respondent was acquitted of the charge.  The said order was produced by the respondent before the Labour Court but no further details were on the record either in the award or in the records and proceedings of the appeal like date of registration of criminal case, its number, date, time and place of offence, name of the complainant, name of the witnesses, date of arrest, the date of filing criminal Misc. petition by the respondent for the release of him on bail, the period remained in judicial custody etc.,   Further  the respondent was acquitted on benefit of doubt.   There is no information as to whether any appeal has been filed against his acquittal order.  It also appears that the appellant had issued notice to the respondent before terminating his service which proves that the appellant has no ill motive in the said action of terminating the services of the respondent.  In fact the respondent had not accepted the said opportunity for the reasons best known to him.

                        The Court further held that even during the judicial custody the respondent could have intimated about his leave to the employer but nothing has been intimated by the respondent about his unauthorized absence to the appellant.  The Court held that the reference by the respondent before the Labour Court was only after an interval of two years and therefore the reference itself was time barred.  The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein.   It cannot be put in a straitjacket formula.   It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case.  In the present case it is indisputably admitted that the postal articles were refused by the respondent and thus no requirement of any further inquiry has arisen. 

                        For the applicability of Sec. 25-F of the Industrial Disputes Act to this case the Court held that the respondent has not led any evidence to the effect that he had completed 240 days in a preceding year and so Section 25-F of the Act would not be applicable.  Moreover it is important to note that in spite of giving written to the respondent he had refused the postal article and so now he cannot take advantage by submitting that since he was in judicial custody it was not possible for him to attend his duty without any further data relating to his criminal case.

                        The respondent showed lack of interest in work then how he can expect more from the appellants.   The respondent has failed to show his bona fide and interest in his duty to be performed by him more particularly when he had refused to accept the show cause notice sent by post by the appellant.  The Court allowed the appeal of the appellant corporation and set aside the orders of the Single Judge.